Legal Regime of the Artificial Islands in the Caspian Sea

The idea of creating artificial islands has already reached the Caspian Sea. The idea has been previously put to action extensively in many parts of the world, including and especially the Persian Gulf.

The UAE, Qatar, Oman, Kuwait and Bahrain have established various kinds of these islands and they are creating their own legal discussions (1). In the case of the Caspian Sea, noting its special legal regime and also the fact that the littoral states of the Caspian Sea have not reached a commonly agreed formula for sharing it seabed and superjacent waters, the emergence of artificial islands, gives rise to questions that may add to the potentially dangerous situation of the region. (2)

An artificial island or man-made island is an island or archipelago that has been constructed by people rather than formed by natural means. They are created by expanding existing islets, construction on existing reefs, or amalgamating several natural islets into a bigger island. Early artificial islands included floating structures in still waters, or wooden or megalithic structures erected in shallow waters. In modern times artificial islands are usually formed by land reclamation, but some are formed by the incidental isolation of an existing piece of land during canal construction, or flooding of valleys resulting in the tops of former knolls getting isolated by water. Some recent developments have been made more in the manner of oil platforms and energy islands. (3)

Here are some examples of energy artificial islands that may appear more and more in the places like Persian Gulf and the Caspian Sea.

An energy artificial island. (4)

Another energy artificial island in the form of flowers (5)

Palm Artificial Island in Dubai (UAE) (6)

Durrat Al Bahrain, Persian Gulf (7)

The existing and proposed artificial islands in the Caspian Sea

The Artificial Island of Kazakhstan

In Kazakhstan, an artificial island was constructed in 2001 as part of the development to serve as exploration and production installations in the Kashagan East area of the north Caspian Sea. The island has a sea floor footprint of 225 by 135 meters with the freeboard rising 4 meters above the mean sea level. (8) September 16 President Nazarbayev visited the artificial island D in the Caspian Sea constructed to support operations at Kashagan giant offshore oilfield, KazTag reports.

President emphasized it had’t been easy to attract investments to the project. “It was one of the most complicated projects from the technology perspective. Its development called for colossal investments ... Kazakhstan’s economy has been evolving, the applicable legislation sets favorable conditions for oil operations - these factors enabled me to attract investors that have injected $33 billion dollars into the project by now”, KazTag quoted him as saying.

The D artificial island is located 85 km away from Atyrau. 3.5 million tons of rock was used to construct it. The facility is capable of handling 450 000 barrels a day. It is home to two residential quarters - Shapagat and Karlygash. A total of 5430 people are currently employed at the island. The facility, among other things, accommodates 2 drilling rigs. The island is connected to the mainland with three pipelines. The D island connects other maritime facilities used at the 1st stage of Kashagan development.

Iran announced in 2005 that the Iranian artificial island in the Caspian Sea will cover nine million square meters and will be built in the northern province of Gilan. The Gilan Province Panning Commission has in principle approved the project. (9) Azerbaijan Republic announced in 2009 that it was going to create an artificial island near Baku’s Caspian shores. The initial part of this plan was construction of several islands 4 to 5 kilometers from Baku. (10)

The blueprint of Turkmenistan’s artificial islands in the Caspian Sea (11)
(Turkmenistan is planning to turn these artificial islands in the Caspian Sea into Las Vegas of the region)

Experts have warned against Turkmenistan’s plan to build an artificial island southeast of the Caspian Sea. They say it would pose a serious threat to the natural habitat, namely sturgeon fish and Caspian seals. Professor, Mohammad Reza Fatemi says “Experts believe structures of the island could destroy the entire ecological system of the sea.” “The region designated for construction of the island is southeast of the Caspian Sea. It is a suitable habitat for the reproduction of aquatics. Building this island can entail severe negative effects on sea creatures and biosphere,” he noted.Fatemi opined that the artificial island would create unusually high amounts of sediments that which by itself result in extensive death of aquatics in the landlocked sea. (12)

According to the law of the sea in general and the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in particular, artificial islands have little legal implications, especially as far as the measurement of the maritime zones are concerned. The Artificial Islands are not considered as permanent harbor works. This means that: the coastal state cannot claim the same rights that have been provided for the permanent harbor works in the determination of the baseline and measurement of maritime zones. Article 11 of the UNCLOS 1982, provides: “for the purpose of delimiting the territorial sea, the outmost permanent harbor works which form an integral part of the harbor system, are regarded as forming part of the coast. Off-shore installations and artificial islands shall not be considered as permanent harbor works.” (13)

According to the same convention the artificial islands are under jurisdiction a coastal state if they are constructed in the EEZ (Exclusive Economic Zone). The article 56 of the 1982 UNCLOS provides: “1- in the exclusive economic zone, the coastal State has (a) Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and the sea-bed and its subsoil, and with regard to other activities for economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this convention with regard to (i) the establishment and use of artificial islands, installations and structures....2- In exercising its rights and performing its duties under this convention in the exclusive economic zone, the coastal state shall have due regard to the rights and duties of other states and shall act in a manner compatible with the provisions of this convention....” (14) Artificial islands do not possess and are not able to gain the legal status of the natural islands or even the tidal elevations (i.e. Islands that only appear in the low tide). This means: they do not have their own maritime zones, such as territorial sea (12 nautical miles), contiguous zone (another 12 nautical mile) or exclusive economic zone (200 miles from the baseline).

Churchill and Lowe on the Law of the Sea, published by the Manchester University Press, say: : “The only provision on artificial islands in the 1958 Geneva Convention (on the Law of the seas) was article 5(4) of the Continental Shelf Convention, which provided that installations connected with the exploration and exploitation of the shelf’s natural resources and located on the continental shelf ‘do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea of the coastal states.’ So the artificial islands cannot be the baseline for measuring the maritime territories. The 1982 Convention on the law of the sea supports this conclusion. Article 11 provides that: offshore installations and artificial islands shall not be considered as permanent harbor works...Article 60(8) and 80 provide that artificial islands and installations constructed in the EEZ or the continental shelf have no territorial sea of their own nor does their presence affect the delimitation of the territorial sea, EEZ, or continental shelf. ...even though the construction of artificial islands on the high seas is now considered as a freedom of the high sea (article 87 of the Law of the Sea Convention), the prohibition on states from subjecting any part of the high seas to their sovereignty (article 89 of the 1982 Convention of the Law of the Sea) prevents the establishment of any maritime zones around artificial islands on the high seas.” (15) Only the coastal state may authorize the construction of artificial islands. This is a point expressed clearly in the article 60 of the 1982 UNCLOS.

Construction of artificial islands has considerable impacts around them, especially if the projects are large scales. The big projects have extensive environmental implications for the whole region. “This subject is addressed in numerous treaties, other instruments, and international court and arbitral decisions. In 2003, for example, the International Tribunal for the Law of the Sea addressed claims by Malaysia that a Singapore land reclamation project would adversely affect the marine environment by, among other things, increasing sedimentation, increasing coastal erosion, and increasing salinity and pollution due to discharges. The Tribunal focused on a variety of procedural obligations, found in the Law of the Sea Convention and in general international law, which require steps of assessment, notification, and cooperation. For example, potential effects of activities reasonably believed to cause significant and harmful changes to the marine environment must be assessed, and other states must be notified about damage to the environment. The Tribunal in the Malaysia-Singapore Land Reclamation Case also invoked what it termed the “fundamental” duty to address environmental concerns through cooperation. In addition, the Tribunal found that, “given the possible implications of land reclamation on the marine environment, prudence and caution require[d]” the establishment of certain risk-assessment mechanisms. The Tribunal’s “prudence and caution” Language indirectly echoed the still-evolving “precautionary principle.” This principle has been articulated in treaty law and discussed in the international legal literature with increasing frequency since its inclusion in the Rio Principles, which were developed at the 1994 U.N. Conference on Environment and Development (UNCED). Broadly speaking, this principle provides that “[w]here there are threats of serious . . . damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Among other broad principles of current significance in the field of international environmental law, the concept of “sustainable development,” articulated at UNCED, provides a procedural touchstone against which development proposals will be considered. An artificial island would have effects on the marine environment, effects that would be evaluated in light of these established and asserted principles of international environmental law.” (16)

The Caspian Sea is already having serious problems that emerge from the fact the littoral states of the Caspian Sea (Iran, Russia, and Turkmenistan, Azerbaijan Republic and Kazakhstan) have not succeeded since the collapsed of the former USSR in 1991 to find a generally agreed solution for the legal regime of the Caspian Sea. This means they have not found a formula for dividing or sharing the Caspian Sea. (17) Now a couple of new ideas are putting pressures to the existing potential tensions, one of them is the plan for establishment of underwater pipelines in the Caspian Sea that can transport oil and gas from the landlocked countries of the Caspian Sea to the markets in the European countries (18) but most recent one, which is the subject of this piece, is the issue of the creating artificial islands in the Caspian Sea.

Although recently there is news of Turkmenistan concluding agreements for establishment of these islands, in fact Iran was the forerunner in the same issue. According to ISNA, the project of designing for the “Islamic republic of Iran Artificial island in Golestan Province (north of Iran), has been opened for bidding and this will be the first artificial island of Iran” (19) Turkmenistan is planning to build its first artificial island in the Caspian Sea in the shape of Turkmenistan’s national emblem (8 winged star) and this is a part of greater coastal touristic complex.

The most important questions about the related issues are:

What are the legal implications of creating artificial islands the Caspian Sea?

What are the duties and responsibilities of the littoral states in the Caspian Sea?

What are the environmental impacts of the artificial islands in the Caspian Sea?

From legal pint of view, the Caspian Sea is a “sui generis”, meaning that it is not subject to the customary rules of the international law of the sea, and due to its special characteristics, it has its own legal status that is created only by the littoral states of this body of water. Before the collapse of the former USSR (1991), the special regime of the Caspian Sea was whatever decided by the only two littoral states (Iran and Russia), but after the disintegration of the Soviet Union, the newly established states and Iran have not yet reached a conclusion on the new regime of the Caspian sea. Therefore, unlike some claims about lack of a legal regime in the Caspian Sea, this body of water has already a legal regime based on the agreements between Iran and the former USSR, but the new states can find a new regime to replace the previous one and until such time, the old regime (based on 1921 and 1940 treaties of Iran and Russia) is still valid. (20)

According to the previous regime, which is still valid, the littoral states had a kind of common ownership (condominium) in the Caspian Sea. The division of the Caspian Sea remains a thorny issue complicating relations among the littoral states. Since the collapse of the former USSR, these states made efforts (such as the Ashgabat summit in 2001 and the Tehran summit in 2007 and Baku Summit of 2010) to arrive at a collective solution; and they failed.

Thus, bilateral agreements among some littoral states have begun to overshadow efforts at collective diplomacy, resulting in the conclusion of several treaties among Russia, Azerbaijan, and Kazakhstan. Iran and Turkmenistan have refused to go along, declaring these agreements null and void. In the years that Iran insisted on "equity" in division of the Caspian Sea, it seemed this might imply acceptance of something less than 20 percent for all the littoral states (for example, 16 or 17 percent for Iran or any formula that included a couple of known oilfields such as Alborz-which Azeris call Alove or Flame). But before the 2010 Summit in Baku, Iranian officials made it clear this was not the case. Immediately after the conclusion of the meeting of the Caspian ministers in Tehran (15 November 2010), the special envoy of the Iranian president for Caspian Sea affairs, Mohammad Mehdi Akhundzadeh, responded to a question by the official news agency of Iran, IRNA, about a 20 percent share for Iran: "Our aim goes further than this limit." (21)

The Russian tailored and imposed formula of Modified Median Line (MML), according to which the seabed of the Caspian Sea is divided into national territories on the basis of a Modified Median Line that is drawn on the basis of the land borders with the Caspian Sea, and the superjacent waters are left for the common navigation of the littoral states of the Caspian Sea. In the case of the countries that have accepted it (including Azerbaijan) and it has nothing to do with the maritime territories, over-flight, and navigation of the commercial and military units of the coastal and non-coastal states and so on. Iran believes that MML is not able to create an equitable situation in the division of the Caspian, and Turkmenistan believes several oil fields that Azerbaijan controls them according to the MML must be the Turkmenistan's share. The failure in the agreement has led to several instances of conflict like 2001 incident of Iran-Azerbaijan dispute and the Azerbaijan-Turkmenistan dispute. The latter led to the closure of the respective embassies in their capitals for some time. Azerbaijan believes that the seabed must be divided according to the MML. This gives Azerbaijan 21% of the Caspian Sea and control over all 15 major oil fields that it is claiming now, including the Alborz Field claimed by Iran. This area is not the biggest share of the seabed for a single country in the Caspian (the biggest share goes to Kazakhstan with almost 29% of the Caspian seabed), but it is the home to the vast resources of the Caspian oil (compared to the Iranian hypothetical share of the seabed, using the MML, which is almost 13 percent and free from any major known resources. The deep Sea in the Iranian part makes the exploration and exploitation even more difficult). Azerbaijan's position in this field is supported by the Russian Federation, the founder of the MML in the Caspian Sea.

It seems illogical and out of the legal context to ask the states around the Persian Gulf to stop building the artificial Islands in their maritime areas. However, taking into consideration the general obligations of the states as members of the international community, the treaty obligations of the states, especially in field of the international law of the sea, and the environmental law these points must can be stated as the conclusion of the present piece:

In case, the Caspian Sea littoral states agree with the recommendation that they use the same rules of the UN Convention on the Law of the Sea for this region (supported seriously by Kazakhstan), the regulations about embellishment of the artificial islands in the convention should be fully observed. However, the special circumstances of the Caspian Sea, requires it that even more extensive provisions should be inserted in the common documents including the Convention of the legal regime of the Caspian sea (not ready yet), the protocol to the existing instruments especially 2003 Tehran Convention on the Caspian environment.

The non-littoral states cannot construct artificial islands in any part of the Caspian Sea.

The flag state (or the coastal state) of the artificial islands must give proper notification to the other regional states regarding the construction and particulars of the artificial islands.

The flag state (or the coastal state) of the artificial islands must arrange for regional coordination, for the sharing the information, exchange of the experiences, and planning for emergencies and other considerations related to the establishment and operation of the artificial islands.

The flag state (or the coastal state) of the artificial islands must make plans and preparations for observing the rights of other littoral states, and non-littoral states, especially in case of the using the right of innocent passage from the maritime territories. This may involve planning of the traffic schemes and corridors.

Noting the environmental effects of the artificial islands, the flag state (or the coastal state) of the artificial islands must make plans and provide regulations to minimize the environmental effects of the construction of the artificial islands. The effects of the artificial islands on the regional ecosystem and the marine pollution due to accidental and operational reasons are among the most important points that should be addressed.

In order to compensate for the inevitable damage to the regional ecosystem and the environment, the flag state (or the coastal state) of the artificial islands must take actions, through coordination with other concerned states, to perform plans and implement arrangements for replacing the damaged parts or systems. This may include construction of additional structures, establishment of systems to help the natural habitat of the species are put to danger due to the construction of the artificial islands, and provide alternatives for the concerned issues.

The flag state (or the coastal state) of the artificial islands must work with the other regional states. This is not only based on the fact the Caspian Sea is “closed sea”, but also because it is a of the environmentally sensitive area ( there are special rules for it in the treaties of the international law of the sea).

The last but not least point is that 4 littoral states of the Persian Gulf are Muslim countries and even the Russian side of the Caspian are in many places populated by the Muslims (such as the Chechens), it should be noted that there is a strong legal and religious principle in Islam which accepted both by Sunnis and Shiites and that is the Principle of “La-Ezrar” or stopping from creation of loss and damages to the interest of the other Muslims. This principle should be respected in establishment of the artificial islands, even if it not rooted in the present body of the international law, as it is accepted in the Islamic law.

in the light of the fact that in the case of environmental pollution, there is a possibility of interpreting or trying to interpret the pollution as a form of international crime or even “aggression”, solving this problem through consensus can be a step in the line of reducing centers of tension in the region(22)

Notes and references

Regarding the legal status of the artificial islands in the Persian Gulf please see: Iran and the International Law of the Sea and Rivers, CreateSpace, Bahman Aghai Diba, 2010. Regarding the various plans for establishment of the artificial islands in the Persian Gulf and their detailed maps and illustrations please see: Salahuddin, Bayyinah, the Environmental Impacts of the Artificial Islands Construction in Dubai of the UAE, Duke University, 2006, The Nicholas School of the Environment and Earth Sciences of the Duke University.

The Law of the Sea, United Nations Convention on the Law of the Sea, United Nations, New York 1983

The Law of the Sea, United Nations Convention on the Law of the Sea, United Nations, New York 1983, P. 18

R.R. Churchill and A.V. Lowe, the Law of the Sea, Melland Schill Studies inn International Law, 3rd edition, Manchester University Press, 1999, page 51. This book has been translated into Persian by Bahman Aghai Diba, and its second edition published by Ganjedanesh Publications in Tehran, Iran.